N5547
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 521 OF 2012

THE STATE
v
JOHN PAUL YAWUR - NO.1

Vanimo: Geita AJ 
2014: 18, 19, 20, 25 February

CRIMINAL LAW – Trial – Wilful Murder - Circumstantial evidence –whether co-accused can be found guilty of the same crime as the principal accused – common intention must be present –whether the accused can be found guilty by operation of ss. 7 & 8 Code.  
CRIMINAL LAW - Wilful Murder – Section 299 (1) Criminal Code – Elements present - Circumstantial evidence – common intention present- accused aided and abetted – no evidence of withdrawal of  his intentions –Ample opportunity to communicate his intentions - Guilty by operation of ss 7 & 8 Code. Guilty verdict entered.

The accused was arraigned on indictment charging him with the murder of the deceased Albert Komboni. The charge is laid pursuant to Section 299 Criminal Code, Chapter Number 262. And whether he can be found guilty of the same crime committed by the principal accused by operation of Sections 7 and 8 of the Code: aided and common intention. 

Cases Cited 

The State v John Okate & 7 Ors [1992] PNGLR 542 
Paulus Pawa -v- The State [1981] PNGLR 493 
The State -v- Tom Morris [1981] PNGLR 498
The State -v- Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48
Garitau Bonu and Rossana Bonu -v- The State SC. 528

Counsel

Augustine Bray, for the State. 
Baptist Fehi and Ms. Renatta Yayabu, for the accused. 

JUDGMENT ON VERDICT
25 February, 2014 

1.      GEITA AJ: On arraignment the accused pleaded not guilty to the charge alleged to have been committed on 12 March 2012 at Nuku High School, West Sepik Province. 
Brief Facts

2.	It is alleged by the State that on 12 March 2012 the accused and co-accused Jack Lai returned to Nuku High School to seek reinstatement after being expelled from school with open transfers for disciplinary offences. When their presence in class was reported to the Principal both boys were asked to leave the school. They however returned to the school the same day around 3.00pm, entered the Principal’s office and shot him with a homemade shot gun and escaped. The accused managed to escape however his co-accused Jack Lai was apprehended immediately after the shooting by staff and students and badly beaten. He has since died from wounds received as a result of the shooting. The indictment therefore is only for the accused John Paul Yawur. The State alleges that the accused acted together with a common intention to shoot a teacher(s) at Nuku High School and invoked Sections 7 and 8 of the Criminal Code. 
3.	Section 299 Criminal Code Act creates the offence of wilful murder and it is in the following terms:
 S. 299 Wilful Murder
(1)	Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.
(2)	A person who commits wilful murder shall be liable to be sentenced to death.”
Elements of the Offence
4.	The elements of the offence of wilful murder are:
1)	That the accused killed the deceased.
2)	That the killing was unlawful.
3)	That the accused had the intention to kill.
Undisputed Facts:
5.	There is no dispute that the deceased Albert Komboni died as a result of gunshot wounds in his office at Nuku High School and that the shot was fired by late Jack Lai and that the killing was unlawful.
Disputed Facts
6.	The facts in dispute are:
a)	Whether the accused aided and had a common purpose in the murder of the deceased;
b)	Whether the accused and his friend had an intention to kill.
Evidence 

7.	The following material were tended into court by consent viz.
•	EXHIBIT "A” (a) & (b) – Record of Interview John Paul Yawur (Pidgin & English).
•	EXHIBIT "B” -  	20 sets of coloured photographs.  
•	EXHIBIT "C” -  	Medical Certificate of Death-late Albert Komboni. 
•	EXHIBIT "D” -  	Wooden homemade gun (still in custody of COC) 	 
•	EXHIBIT "E”-   	Sketch map of school-not to scale

Brief summary of evidence for State and Defence.

State Witness 1- Petrus Aka. 
8.	The witness gave testimony of riding in a Brown Toyota 10 seater driven by Junior Yimeten on the morning of 9 January 2012. He said he was seated at the back seat, behind the driver’s side and saw a homemade shot gun with brown wooden handle with rubber strappings. Inside the vehicle he saw Neville Yimetan, Jack Lai and two other boys. 

9.     On 22 February 2012 he threatened to impound Hesel Komboni’s PMV from Junior Yemiten who was driving it at the time. In the process of removing the passengers and cargo from the vehicle he pulled out a jacket with a gun wrapped inside it. Jack Lai who was seated on the off side came out and told him that he had 8 bullets with him. In the vehicle he saw the accused John Paul Yawur. He left them and walked away.

10.     The next day he approached Hazel Komboni for his refund but was told to return the next day. On 24 February 2012 Hazel Komboni picked him up however instead of returning his money they drove around the town drinking. He returned home disappointed.

11.     On 25 February 2012 the witness and Orbet Oye drove to Bikus Camp in his white Toyota vehicle and met the co-accused now deceased Jack Lai, Junior Yemitam and John Paul Yawur. The witness said he saw them all drinking and shouting. He said he heard Jack Lai shouting that they were going to Nuku High School and that the Headmaster or a teacher would die. He also said John Paul Yawur also shouted that a teacher would die.

12.     During examination in chief the witness said parts of his statement given to police were not properly recorded or included. He however said he was able to identify the wooden homemade gun when called into the police station to verify.
 
13.     In cross examination the witness said parts of his statement covering the happenings on the 9th February were not recorded properly, some parts were missing. Saying some dates were changed. He remained mute when questioned why his oral testimony given in court was different to his written statement. His statement was however tendered into court by defence as inconsistent statement.  

State witness No. 2 Mr. Blasius Komboni.

14.	This witness is related to the deceased late Albert Komboni. He is a teacher by profession. He gave testimony of seeing the three former students, John Paul Yawur, Jack Lai and Neville Yimiten acting suspiciously as they sat beside the Catholic Brothers house. He said the 2012 school year had started in February and parents had gone to the school to seek re-enrolment for their children. As he sat in his brother’s house he saw them trying to go into the Headmaster’s office so he became suspicious when he saw Neville’s father whispered to the boys to return. 

15.     At that time he saw something sticking out of Jack Lai’s jacket and feared that something bad would happen. He saw the boys walk to the back of the dormitory and stood while Neville’s father went into the Headmasters office. As soon as he came out the witness approached the headmaster and cautioned him to take precautions as something bad might happen to him however he was waived away by the headmaster. He said the three boys then returned to the haus win and walked up to the main road. Jack Lai and John Paul Yawur however took a short cut road where he met them on the main road.

16.	During examination in chief the witness said the three youths were expelled from school because they were problem students with drugs, home brew, and marijuana and told to leave school.

Cross Examinations

17.	In cross examination the witness said they were the only three students removed from school with open transfers. He said he was standing at a distance of about 15 to 20 meters from the boys and saw them clearly and became suspicious of their movements and actions. He said he did not hear them talking about haring the headmaster. He denied that there were other students who were given open transfers and that his suspicions materialised after the incident.

State Witness 3 Brian Wafia

18.	The witness was the Deputy Headmaster at St. Francis Nuku High School. He gave testimony of seeing the accused and co-accused, Jack Lai now deceased in the students mess on the morning of 12 march 2012 as he was doing his morning rounds as duty teacher. He however did not talk to them. Between 8 am and 9am whilst outside with other students he learnt from a student that the two accused were attending class. That student was then told to report the matter to the Headmaster as he was on his way outside to supervise discipline students for coming late. The witness said he returned to the school, after lunch and visited the Principal who said he was feeling sick and would not be in school that day. Around 2.30pm he called the assembly and told the students to go home as it was raining and that the principal was unwell. Students with school fee matters including disciplinary issue were to go and see him. He said after interviewing the students he returned to the Library and saw the Principal walk into the staffroom. He briefly spoke to him about his health and returned to his office. He was deep in discussion with two female officers in the staff room when he heard gun fire and immediately ran to the Principal’s office. The Principal called out to him and cried as came towards him in the front door.

19.     The witness said he saw blood on his hands and shirt and was shocked and did not think of assisting him, instead he ran to his office, armed himself with a baseball bat and ran to the hall. As he ran at the back of the boy’s dormitory he saw two boys running on the far side of the playing and recognized them to be Jack Lai and John Paul Yawur. The accused John Paul ran ahead of Jack Lai and ran down the river. The witness said he gave chase with some other students and lost John Paul’s trail. The accused Jack Lai disappeared into the school cocoa field but was soon closed in by the witness who saw him still carrying the home made gun with him. As the witness came close to him the accused turned around and pointed the gun at him. The witness said he jumped to one side and knocked the gun out of the accused’s hand and began beating him all over his body. By than the students had arrived and took part in beating the accused some more time. The witness stopped them and they all removed the accused to the main road together with the homemade gun. He said some students followed accused John Paul Yawur and found him.

20.     The witness said all along none of the students told him that the Principal had died until he heard some students damaging classrooms when he ran to enquire with the gun in his hand. He immediately rang the bell and summoned the students to assembly and told them to return home however told some students to remain behind for fear of retaliation by the accused’s people. He returned to the school clinic and found out that the Principal had died. He took some students and went down to Jack Lai’s place and learnt that he died as a result of the wounds he received from severe beating. 
21.     In examination in chief the witness said he ran after the assailants thinking that the Principal was only shot in the arm and did not bother assisting him. At that time there were light showers of rain. He was able to see Jack Lai and John Paul Yawur run into the open field and could recognise them clearly from their builds. The witness gave a description of the home made gun.

Cross Examinations

22.	In cross examination the witness said he saw the two accused in the student’s mess around 6 am and 7 am on 12 March 2012 but did not talk to them. He said he never bothered to find out from them what they were doing in school that day. Furthermore he did not see the two boys within the vicinity of the headmaster’s office and did not see who fired the gun. He said he saw the two accused running some 5-8 meters apart from each other, with John Paul running ahead of Jack Lai and was able to catch up with Jack Lai. 

State Witness No. 4 Marcellino Steven. 

23.	This witness is 20 years old and a Grade 10 student at Nuku High School. He testified that around 3 pm on 12 March 2012 students were called to assembly and told to return to their classrooms or dormitories due to wet weather. He returned to his dormitory called Daidai and came out again outside as it smelt strongly of marijuana. Whilst in the room he saw the two accused John Paul Yawur and Jack Lai. And as he stood outside the dormitory John Paul Yawur and Jack Lai came out, walked past him without saying a word and headed towards the Headmaster’s office. From where he stood he saw John Paul knock on the headmaster’s office door and moved to one side giving way to Jack Lai. He yelled from the moment he noticed Jack Lai pull out gun from his jacket but it was too late. A shot had been fired. He saw John Paul Yawur came running out first, followed closely by Jack Lai and they both ran past him towards the creek.

24.     In examination in chief the witness said he could see the gun clearly from a distance of about 15-20 meters away i.e.; the distance from Daidai dormitory and the Headmaster’s office. He described the gun as short, with an iron rod and wooden butt with black rubber strappings and said Jack Lai was still carrying it as he ran past him.

Cross Examinations.

25.	In cross examination the witness said he did not sit for Grade 10 in 2013 due to the incident and was now in Grade 10, 2014. He said on Monday 12 March 2012 around 3pm the assembly was called by Mrs Komboni and Mr Wafi. The witness said as he went to the dormitory he saw Jack Lai and John Paul Yawur.  When asked if they had their own rooms the witness said the dormitory was an open space room and easily accessible by student users even those not resident. When asked how he could tell that the smell of the smoke was that of marijuana and not other brand cigarettes the witness said marijuana smelt different. Cross examinations continue:
Q. 23. You did not see who smoked marijuana, correct?
A. There were no other boys in the dormitory except Jack Lai and John Paul Yawur.
Q. 25. I put to you that there was no gun with them in the dormitory, correct?
A. No.
Q.26 Why do you say no?
A. I say no because when they came out of the dormitory they had gun. Jack Lai was in possession of gun and walked straight to the Headmaster’s office.
Q. 29 You saw John Paul Yawur knocking on Headmaster’s office, what made you say that?
A. I stood and watched John Paul walk up, knocked on the door, followed by Jack Lai.
Q.31 John Paul was not knocking on the door but was trying to stop Jack Lai what do you say?
A. No.
Q. 32 After shot was fired, both John Paul and Jack Lai ran past you correct?
A. Yes
Q.33 So you were not afraid in case they may kill you?
A. I was in a state of shock as they ran past me.
Q.34. Did anyone ran after them?
A. Yes students ran after them.

Re Examination

26.	In re-examination the witness said both accused persons were not students in 2012 and did not have rooms but forced themselves into the dormitory. 

No case submissions.

27.	At the close of State’s case defence mounted a no case submission relying on the case of The State v Paul Kundi Rape [1975] PNGLR 96. The no case submission was however dismissed on the grounds that prima facie there were some evidence now before court and the accused must be heard should he choose to call evidence. The defence only witness, the accused took the stand and gave evidence which is summarised here under.
 
Defence case 

28.	The accused is aged 18 years and comes from Yambil village, Nuku in West Sepik Province. He testified that he was one of fifteen (15) students served with “open transfers” by St. Francis Nuku High School in 2011. He remained at home that year and went looking for a school in Aitape, February 2012 with several other boys and his cousins. He found lodging at his uncle Alphonse Kowor’s ’s home. He did not know Jack Lai and Neville Yemiten.  

29.     At St. Ignatius Secondary School the Principal accepted his enrolment however as he did not have any school fees on him he stayed two more days with his uncle and returned home to see his father for school fees. After mustering the necessary school fees he walked back to Aitape from Nuku and was accommodated again at his uncle’s home. The next day he fronted up at St. Ignatius High School with his fees and the open transfer certificate but was told to secure his Grade 10 results from his former school and so he stayed on with his uncle until his father came to Aitape with the President of Palai Local Level Government. After they had finished their business he took a ride home with them to Nuku.

30.   Whilst at Nuku his father accompanied him to see the Headmaster of Nuku High School but were told to return and wait for the decision of the school’s Board of Management. Sixteen other boys were told the same story so he returned home and stayed in the village until 11 March 2012 when Jack Lai came to his house and in the hearing of his mother and father, asked him to accompany him to school .  With his father’s permission obtained he went along with Jack Lai accompanied by some other students and arrived at the school grounds in the afternoon. The witness said they went and slept in a dormitory, Jack Lai slept with his friends and he slept with his cousins.

31.     He woke up the next day Monday 12 March 2012, reported for morning work and later washed and went for breakfast. He said Jack Lai never followed him that morning. He then attended class alone after having his breakfast  saying Jack Lai came after him into class up until they were summoned to see the Headmaster in his office. He said the Headmaster questioned them why they were in class and refused to give them their open transfer and their internal marks and said they were both terminated. 

32.     The witness said he became furious with Jack Lai for misleading him, took his bag and headed for his home. He said a fellow student caught up with him and told him to wait for Jack Lai however when Jack Lai was too slow coming to him he went into the dormitory and saw him sitting alone. He said Jack Lai got his bag out unzipped it and pulled out a homemade gun. When questioned what he was going to do with the gun Jack Lai did not reply but walked out of the dormitory and he followed him. The witness said because Jack Lai was huge in size he pushed him to one side and walked up to the Headmasters office. At the headmaster’s office, the door opened and Jack Lai pointed barrel of gun at his chest. He said he called out and he fell on his left hand side, got up and started running. Some seconds later he heard gunshot fire and continued running and was joined by some boys from Palai LLG area.  The witness said he ran to his house and remained there until his father came with some community policing officers and arrested him.

33.     In examination in chief the accused said he was served his open transfer together with 16 other boys because of missing classes for more than 30 days. His absenteeism was attributed to nursing his sick mother. He said in February 2012 he went looking for school in Aitape, a distance of more than one night spent on the was accompanied by his cousin brother Gideion and some other boys and arrived there around 3-4pm. He said during the month of February he stayed with his uncle Alphonse for a little over a week in Aitape as he searched for a school there. Upon making enquiries at St. Ignatius High School he was given a space so he returned to Nuku with some other boys and remained in the village for another week but later returned to Aitape again.

34.     During the last week of February 2012 his father accompanied him to Nuku High School to get his internal marks but was told by the headmaster that the Board of Management was yet to make a decision. He said he was alone with his father at the time and returned home to Yambil village. The witness said Jack Lai come to his house with some other boys on Sunday 11 March 2012 and they all went to Nuku High School and arrived there around 7.730pm that evening. Jack Lai was with them as they went and sat at the old basketball court and later went to their dormitories. He went with his cousins Jonah but did not see where Jack Lai went. 

Cross Examination

35.	In cross examination the accused said him and Jack Lai were asked to leave school during Term 3 2011 and began searching for a school in Aitape during the second week in February 2012. When asked if he knew Jack Lai very well he said  he was a class mate but not friends. When suggested to him that with him spending the 2nd week and some days of February 2012 in Aitape, he would have been in Aitape by 22 February,  the accused denied outright that he wasn’t.  When asked if he knew Junior Yamiten he said Yamitem was a PMV driver and regularly drives a white 10 seater land cruiser and a brown land cruiser. He denied State assertion of being seen at Fikus camp.
Cross examination continue...
Q. 23. Whilst in Aitape did you come into contact with Jack Lai?
A. I came across him with Yamiten at shopping centre but did not stay with them.
Q. 26. I put to you that you met Jack Lai at Aitape on 22 February 2012?
A. Yes I saw but they passed by as me and my uncle went past them.
Q. 30 Evidence before court is that you used steam and marijuana, is that correct?
A. That is not true.
Q.34. On 11 March 2012 Jack Lai came and met you at your village?
A. Yes, he came with some other boys but I don’t know their names as they were from another village.
Q.35, Before you left your father told you to check and report?
A. Yes.
Q.36 So you went to school  around 7.7.30pm?
A. I was already in School.
Q. 37 What time in student’s dormitory?
A. After night studies around 9 pm.
Q. 38 At that time you had no confirmation, no enrolment into school?
A. Yes
Q.39. When you went to school you did not report to Headmaster?
A. Yes   
Q.40 You stayed at Daidai dormitory?
A. Yes
Q. 44 You went for work parade?
A. Yes I went and cut grass
Q. Who was on duty that time?
A. Mr Wafia.
Q.46 Mr Wafia saw you and Jack Lai at the mess in the morning?
A. That is not true/
Q47. So you saw Mr Wafia that morning?
A. Yes
Q.50 Did it occur to you to go and ask him regarding reenrolment as he was the Deputy Headmaster?
A. No.
Q.51 You went to assembly and went to class?
A. Yes
Q.52 Who gave you permission to attend class?
A. No one gave me permission.
Q.53 You decided to attend classes on your own accord?
A. Because Jack Lai informed me, when Deputy Headmaster saw, he did not say anything so I went to class.
Q. 54 You were later pulled in questioned by the Headmaster?
A. Yes Jack Lai was in with the Headmaster first and I went in later.
Q.55 You left school after Headmaster spoke to you.
A. Yes
Q.56 So you waited for Jack Lai to come.
A. Yes
Q58. I asked you if Jack Lai was your friend but you said only classmates, but when he came to your place on 11 March 2012 you followed him. And on 12 March 2012 when he told you to wait for him, you waited for him for a long time?
A. Yes
Q.58 So you were more than class mates but good friends?
A. When at school he was classmate but at home we are from different villages.
Q.59. If class mates you would not waited from him?
A. I thought Jack Lai had some good news so I followed him.
Q. 60 So on 12 March 2012 in the morning the Headmaster asked you to leave school?
A. No.
Q.61. The day Headmaster was shot in the morning, is that when the Headmaster asked you and Jack Lai to leave school?
A. No.  
Q.62 When did the Headmaster ask you and Jack Lai to leave on 12 March 2013?
A. Between 11 am and 12 am.
Q. So not during recess time?
A. The bell for recess had rung and between 11.30 I went to Headmaster’s office and saw Jack Lai already seated in office.  
Q. 64 When you waited for Jack Lai at creek did it rain?
A. It was cloudy but no rain.
Q. 65 You went to see Jack Lai at dormitory did it rain?
A. No
Q. 67 You saw Jack Lai with a gun?
A. Yes.
68. Did you know he had gun?
A. I was surprised.
Q.69 Where were other students at that time?
A. Students were in the dormitory and others outside.
Q.70 How big was gun?
A. Gun, less than a metre with wooden handle, pipe and tied with black rubber.
Q. 71 Jack Lai walked out of dormitory?
A. Yes
Q.72 Dormitory? Any rooms or open space?
A. Yes
Q. 73 You followed Jack Lai and tried to stop him?
A. Yes he pushed me and walked on.
Q. 74. He went into Headmaster’s office?
A. Yes I tried to stop him.
Q.75. He pointed gun at you?
A. Yes I fell on the left hand side, door opened, gun pointed at him.  
Q. 76 You really wanted to stop him?
A. I don’t know but from his reactions I could tell that something was going to happen.
Q.77 There were lots of students in and out of the dormitory, why didn’t they come and assist you?
A. He is a big in size and if I were to give the alarm he would shoot me.
Q.78. If you were so scared why follow him and try to stop him?
A. Because he is my classmate I followed him thinking that he would listen to me.
Q. 79 I put to you that you are lying to court?
A. That is not true.
Q.80 Because if there were students in the dormitory and outside they would assist.?
A. Gun was concealed.
Q. 81 Other students were there, you could have alerted them?
A. I feared him from retaliation as he is a big boy.
Q.82. You could not have followed him but raise the alarm for students to assist, what do you say?
A. I thought he would listen to me.   
Q. 83. But he is not your friend, why would he listen to you?
A. Because at school, at times he listens to my advice.
Q.84. That afternoon, ( 12 March 2012) it was raining and work parade suspended and afternoon was free?
A. That I don’t know.
Q.85. That time its free time and you and Jack Lai were only ones in dormitory?
A. Not true.
Q. 86 You and Jack Lai were smoking marijuana in the dormitory?
A. Not true.
Q. 87 You were the first to walk to Headmaster’s office and Jack Lai followed?
A. Not true.
Q. 88 You knew Jack Lai was armed with shotgun and put in jacket?
A. Yes I saw gun in jacket and tried to stop him/
Q. You opened door to Headmasters office and knocked?
A. Not true.
Q.  You stood aside and let Jack Lai shoot the headmaster?
A. Not true so I ran away.
Q. You knew what was going to happen and that Jack Lai was going to shoot the Headmaster?
A. I don’t know his intentions.    
Q. You both were frustrated because of expulsions?
A. Our thinking are different.
Q. 95. Evidence before court is that you called at Fikus camp that one teacher at Nuku High School would die correct?
A. That is not true.

Submissions by defence

36.	Defence Counsel Mr. Baptist Fehi made oral submission on behalf of his client. He submitted amongst other issues the need for this court to caution itself because State evidence was basically circumstantial and that it failed to prove a common intention and that the accused aided in the crime. He said there were no eye witnesses to the actual shooting. The court was referred to the case of the State v John Okote & 7 others [1992] N1068. Jalina J discussed the law on circumstantial evidence. State must prove evidence to one reasonable hypothesis i.e. Guilty and must prove beyond reasonable doubt. He submitted that his client was not in company of the co accused Jack La1, Neville Yamiten and Junior Yamiten and was not in Aitape as alleged by the State.  Defence Counsel correctly grouped the state evidence into two streams: State witness 1 & 2 gave evidence of prior happenings and witness 3 & 4 gave evidence relating to the actual dates and the incident. He questioned why the Deputy Headmaster only pointed out the two accused persons when a third person Neville was also present?   Mr Fehi submitted that the sketch plan accepted into court not to be accepted into evidence as it was not to scale and was intended as an aid to court only. NB. I took judicial notice but did not take that into account in evidence. He submitted that State evidence to be confusing and mere allegations and that his clients’ evidence must be believed as he gave evidence in a forthright manner and with confidence. Mr. Fehi submitted that his client be acquitted as State evidence on common purpose and intention was grossly insufficient hence indictments on charges  under s.299 and sections 7 and 8 Code must fail. He said an alternative verdict under section 539 Code was not supported and should not be considered by court.

Submission by State 

37.	Mr. Augustine Bray for the State submitted in his prepared submission that the death of Albert Komboni and who caused his death using a shot gun was not disputed: late Jack Lai. Also the accused John Paul Yawur was present at the time of the shooting. The only issue for courts deliberation being whether the accused and co-accused carried out a common purpose and whether John Paul Yawur had a common intention with Jack Lai to shoot the deceased?. Mr Bray submitted that prior to the date of the crime, ie; 12 March 2012 the gun used to carry out the crime was seen by a state witnesses in a vehicle in which Jack Lai and John Paul Yawur were seen together at different locations in Aitape town including on the day in question. They both were at Nuku High School Daidai dormitory after being told that they were expelled from school, both went up to the Headmasters’ office and both escaped after the shooting.  He submitted that the State witnesses be believed as accused version of events and his actions were illogical. He said the accused was trying to distance himself from Jack Lai in order to escape the net cast out by Section 7 and 8 of the Criminal Code, advancing that the accused was not a witness of truth and was lying to court. Counsel Bray submitted that the requirement of intention and common purpose was adequately demonstrated by State: Their conduct prior to 25th February 2012, a gun was used to carry out the crime, they were together for most part of day on 12 February 2012. The accused John Paul Yawur should therefore be found guilty of the wilful murder of late Albert Komboni under Section 229 of the Criminal Code.

Introduction

38.	The issue is three pronged: whether the principal accused (deceased) intended to kill the deceased; whether the co-accused can be found guilty of the same crime as the principal accused by operation of Section 7 and whether he aided the principal accused and had a common intention by operation of Section 8 of the Criminal Code. The issue of who caused the death of the Headmaster is easily dealt with as Jack Lai (deceased) shot him with a homemade shot gun in his school office. I now deal with the two remaining issue based on evidence collected.
 
Circumstantial evidence
39.	First I deal with the issue of whether the case against the accused is circumstantial. Defence Counsel Baptist Fehi has correctly pointed out that his client’s case was circumstantial and I cannot agree with him anymore. To this end I caution myself on the need to be careful in convicting persons on such evidence. The law on circumstantial evidence is that, where a case against an accused person rests substantially upon circumstantial evidence, the question for the Court is whether the guilt of the accused is the only rational inference that in all the circumstances would enable it to draw. The court was referred to the case of The State v John Okate & 7 Ors [1992] PNGLR 542 (22 April 1992). His Honour late Jalina J discussed and applied the law relating to circumstantial evidence as contained in the Supreme Court decision of  Paulus Pawa -v- The State [1981] PNGLR 493 and the  case of The State -v- Tom Morris [1981] PNGLR 498. These principles have been applied in many subsequent cases both by the National and Supreme Courts.  ( The State -v- Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48 and Garitau Bonu and Rossana Bonu -v- The State SC. 528.)
Issue Two: Whether the accused aided another person (Jack Lai) in committing the offence.
40.	All State witnesses testified of seeing the accused John Paul Yawur associated with Jack Lai one way or another well before and after the crime of wilful murder. They were both given open transfers towards the end of term 3 school year at Nuku High School; both entered the school premises uninvited and found accommodation at Daidai dormitory; both were reprimanded by the Headmaster and told to leave the school grounds on 12 February 2012; they both walked up to the Headmasters office where Jack Lai shot the headmaster at point blank distance. All these crucial evidence remained intact and undisturbed. The accused’s attempts to distance himself from Jack Lai including his attempts to prevent him from using the shotgun remain flawed in my view. If his evidence was to be believed there were many students in and outside the dormitory and had he raised the alarm as suggested by the State, students nearby would prevent the crime from happening. All he said in dismal attempts to shift blame to Jack Lai was that he was big in size and he feared being hurt by him if he raised the alarm. Furthermore he said his attempts to stop Jack Lai walking up and entering the headmaster’s office was thwarted by Jack Lai pointing the gun at his chest when the door was opened. This crucial piece of evidence did not find corroboration in his Record of Interview nor was it mentioned during investigations. Inferentially this piece of vital evidence is of recent invention hence inconsistent with what he told the police. I am not satisfied that the accused is a witness of truth. His evidence is riddled with inconsistencies and contradictions.
41.    Applying the principle of logic and common sense, as stated in Tom Morris’s case I am more inclined to make a finding of guilty of the accused as no other reasonable hypothesis has presented itself. I find as a fact that on the day in question accused John Paul Yawur was in company of Jack Lai and aided him in committing the crime of wilful murder on the former headmaster of Nuku High School.   
42.     Section 7 Criminal Code provides that it is possible for those who are not the main perpetrators to be also guilty however there must be some evidence of the wrong committed by that person (s) within the meaning of the provision. Only a single act or omission or a series of them is sufficient in Sections 7 or 8. I find here that there is evidence that the accused was in company of Jack Lai and aided him to commit the crime. To this end I make finding based on all evidence before me that all of the elements of the offence of murder are present and so the accused John Paul Yawur must  as a matter of law be lawfully convicted of wilful murder. 
Issue Three: Whether the accused had a common intention and purpose to prosecute the unlawful purpose with the principal accused: (Jack Lai).
43.	The common thread linking the two accused is that they were expelled from Nuku High for various reasons; They were both told to leave the school the same day when their presence on the school grounds was made known to the headmaster; According to the accused he packed his books and bag and immediately headed for his village but returned to Daidai dormitory at the insistence of Jack Lai and remained with him until the crime was committed. 
44.     The State witnesses gave evidence of seeing him in the company of Jack Lai   and Junior Yimiten in Aitape at different locations towards the 3rd and 4th week of February 2012, thus finding corroboration in the accused statement that he was indeed in Aitape, however said he did not talk to them. On 25th February 2012 he was again seen drinking at Fikus Camp with the two persons and big mouthing of their intentions to go to Nuku High School to cause trouble: a teacher, headmaster or board member would die, of which he categorically denied. The accused however fell short of bringing in a key witness in my view, Junior Yimitem to corroborate his story. This opportunity has gone begging.
45.     The tenor of the accused testimony in my view is weighted heavily on alibi evidence to discredit State assertion of intention and common purpose. I note during pre trail review defence counsel indicated that identification would be advanced as an issue. As it is defence has opted out of this cause as it is now a non issue. The accused’s attempts to distance himself from any involvement and or association with Jack Lai remains mere conjectures and unsubstantiated. To my mind he had the luxury of calling some if not all those persons he mentioned in his evidence to give alibi evidence to sustain and acquittal. He introduced his father and mother, his uncle, his cousin, the Palai LLG President and others. Unfortunately none of those persons were called to give evidence. His parents of all people, being most affected would make every effort to come to the aid of their son in his time of need, however they elected to stay out of court, for reasons only known to themselves. After all this was a father described by the witness who was so caring for his son’s welfare and movements to and from home and school, according to the accused. His father accompanied to Nuku High School to get his open transfer and grade 10 results; His father went to Aitape and assisted transport him back to his village in the Palai LLG vehicle. This part of his testimony  did not find corroboration in his evidence in chief after securing a space at St Ignatius High School. According to him he stayed with his uncle for a few days  and returned to the village with some boys. Inferentially he is either telling a falsehood or has forgotten parts of his story told to court earlier. I think otherwise. This caring father was not called to give evidence.  In short his evidence remains uncorroborated therefore lacking in weight. Having observed his demeanour in court I found him to be forthright with his answers but at times very evasive and quick to disassociate or distance himself from Jack Lai. This is evident because Jack Lai is dead and cannot defend himself. And as the saying goes..Dead men tell no tales...  
46.     Although the accused aggressively argued through his lawyer that all his attempts to stop Jack Lai carrying out the crime was thwarted by his size, no attempts were made by Defence to introduce evidence to proved that Jack Lai was indeed  big in size, physical and therefore no match for the accused. This evidence could have easily come from Jack Lai’s parents or family members, although dead. His evidence of the door being opened by Jack Lai and gaining entry fails to find corroboration with the evidence of State witness Mareclino Steven. I have no reason to disbelieve Marcellino’s evidence. He was in front of the Daidai dormitory when the two accused came out and walked up to the headmaster’s office and he saw everything that happened that day. I find him to be a witness of truth. His evidence remains intact and undisturbed
47.      Furthermore there is no evidence before court to show that the accused John Paul Yawur indeed withdrew or communicated his intention of withdraw from the common purpose at the prevailing time. In fact he went all the way to the scene where the crime was committed and was within a few metres from the crime. Inferentially there is very strong motive for his involvement and participation in the commission of the crime as they were bitterly aggrieved with the schools’ decision not to reinstate them back. Put another way the accused John Paul Yawur had more than 20 meters between him and the purported crime to withdraw of communicate his intention to withdraw. This was not a spur of moment or split second decision in which to withdraw or communicate his intention. He had all the time in the world so to speak to demonstrate his intention of withdrawal but he did not exercise it, to his own detriment.
48.     I am therefore satisfied beyond reasonable doubt that there is ample credible evidence, express or inferentially that connects the accused John Paul Yawur  guilty of the same crime committed by the principal accused through the operation of Section 8 of the Criminal Code. Having found him also guilty of wilful murder, it is not necessary for me to return a verdict of the murder charge which Mr Fehi submitted was not available to his client.
49.     Applying the principles of logic and common sense I am satisfied that there is more than ample circumstantial evidence against the accused and find him guilty pursuant to Section 299 (1) of the Criminal Code. Similarly Section 7 & 8 of the Criminal Code that would make him criminally liable for the murder committed. To this end I make finding based on all evidence before me that all of the elements of the offence of wilful murder are present and so the accused must as a matter of law be lawfully convicted. 
Verdict.	
50.	Accordingly, I return a verdict of guilty against the accused and have him  convicted accordingly. 
Verdict:	Guilty.
 ________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused